Jammal et al v. American Family Insurance Company et al

Filing 321

Memorandum Opinion and Order denying plaintiffs' Motion to decertify all previously certified clases (Related Docs #137 , #292 ). The Court does find, however, that an interlocutory appeal on this issue may materially advance the ultimate termination of the litigation. 28 U.S.C. 1292(b). Therefore, the Court authorizes the parties to take an interlocutory appeal of this Order, pursuant to 28 U.S.C. 1292(a)(1). Judge Donald C. Nugent 7/31/17(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WALID JAMMAL, et al.,
Plaintiffs,
v.
AMERICAN FAMILY INS. GROUP, et al.,
Defendants.

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CASE NO. 1: 13 CV 437

JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
AND ORDER

This matter is before the Court on the Defendants’ Motion to Decertify All Previously
Certified Classes. (ECF #292). Plaintiffs filed a Brief in Opposition, and Defendants filed a
Reply in support of their motion. (ECF #315, 318). For the reasons that follow, Plaintiff’s
Motion is DENIED.
Defendants contend that the trial testimony demonstrates that not all class members were
treated the same, and that even if some were treated as employees, others testified that they were
managed consistently with their contract, which stated that they were to be independent
contractors. This argument fails for the reasons set forth in this Court’s order certifying the
class. (ECF #137). In short, Sixth Circuit law is clear and consistent in holding that employee

status is determined based on the Company’s retention of a right to control the manner and
means of the worker’s service. This right does not need to be exercised, it matters only if the
Company retains the right to do so. See, Peno Trucking, Inc. V. C.I.R., 296 F.App’x 449, 456
(6th Cir. 2008); N.L.R.B. v. Cement Transp., Inc., 490 F.2d 1024, 1027 (6th Cir. 1974)(“It is the
right to control, not its exercise, that determines an employee relationship.”). As set forth in this
Court’s Findings of Fact and Conclusions of Law, American Family retained the right to control
the manner and means of all of the agents’ work, even though it did not universally exercise that
right. Defendants’ argument that the agents were not similarly situated with regard to their
employee status is not compatible with the applicable case law.
Defendants also contend that the class should be decertified because some agents are
happy with their treatment by American Family and do not want to be classified as employees.
They argue that this creates a situation where the named Plaintiffs are not adequate
representatives of the interests of all class members. This argument was also previously
addressed in the Court’s opinion denying Defendants’ prior Motion to Decertify All Previously
Certified Classes. (ECF #212). The trial testimony in this case added nothing to the information
previously available to Defendants at the time of class certification, and the filing of their first
Motion to Decertify.
In addition, Defendants argument that thousands of current agents oppose the
consequences of a Plaintiffs’ verdict in this case is purely speculative. Only one current agent
testified at trial that she is happy with her current situation. She did not testify that she would be
unhappy receiving ERISA protected benefits. Further, all current agents received notice of the
class certification and were given the option to opt out of the damages portion of the case. Of

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those agents only eleven chose to opt out. (ECF #294). Thus, there is no evidence to support
Defendants’ contention that a class conflict exists in this case. Even if there were some evidence
that some class members oppose the relief sought by the named Plaintiffs, a court should not
decertify a class “solely because some of the class members prefer to leave their rights
unremedied.” 5-23 Moore’s Federal Practice - Civil §23.25[b][iii](2016)(citing cases).
Decertification is a drastic step, not to be taken lightly. In re Whirlpool Corp. FrontLoading Washer Prods. Liab. Litig. , 302 F.R.D. 448, 459, 474 (N.D. Ohio 2014). Defendants
have cited no new evidence that would provide a legitimate reason to decertify the classes in this
action. The Defendants’ Motion to Decertify All Previously Certified Classes is, therefore,
DENIED. The Court does find, however, that an interlocutory appeal on this issue may
materially advance the ultimate termination of the litigation. 28 U.S.C. §1292(b). Therefore, the
Court authorizes the parties to take an interlocutory appeal of this Order, pursuant to 28 U.S.C.
§1292(a)(1). IT IS SO ORDERED.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge

DATED: July 31, 2017

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